Fourth Circuit issues lengthy disquisition on Confrontation Clause implications of DNA evidence admitted through lab supervisor testimony about report based on tests performed by non-testifying others in the lab

The Fourth Circuit’s opinion today in United States v. Summers contains a lengthy Confrontation Clause analysis stemming from the government’s introduction of the testimony and report of a DNA lab supervisor who testified and prepared his report on the basis of tests performed by others in the lab (who were not present to testify). Judge King wrote the opinion, which was joined in by Judge Shedd. Judge Floyd concurred in the judgment.

Judge Floyd contends that the majority should not have reached the Confrontation Clause issues because any error was harmless. The majority agreed that the error was harmless, but only as an alternative holding after concluding that there was no error. The majority does, however, question the wisdom of the prosecution’s introduction of the DNA evidence. The point of introducing the evidence was to link a black NorthFace jacket to the defendant. The defendant was allegedly wearing the jacket before running from police. When they apprehended him, he was not wearing any jacket, but the police found a jacket (containing a handgun and lots of crack cocaine in its pockets) on the roof of a residence along the defendant’s flight path. Here’s what the majority says about the need for the DNA evidence:

[W]e cannot help but note that the government’s decision to introduce DNA evidence derived from the jacket had the unintended collateral effect of rendering a straightforward case significantly more complex. With respect to proving ownership of the jacket, the evidence introduced through Shea was scarcely more than the thin glaze on a dense cake baked to doneness by the officers’ largely unshakable testimony that: (1) Summers was wearing the jacket before he ran; (2) he was not wearing the jacket when he was caught; and (3) the jacket was found in the immediate vicinity of his flight path. Although we suppose that the jury could have been impressed that Quantico weighed in on the issue, we hardly think that the government needed to rely on the FBI’s star power to prevail in its open-and-shut case. Even had the district court’s admission of Shea’s report constituted error, it would surely be harmless beyond a reasonable doubt.